Alexander Hamilton, Remarks on Act Repealing Laws Inconsistent with Treaty of Peace, New York Assembly

17 Apr. 1787Papers 4:150--52

Mr. Hamilton in a very animated and powerful speech,
expressed great uneasiness that any opposition should be
made to this bill, particularly as this state was individually
interested therein. He felt greater regret from a conviction
in his own mind, on this occasion, that the bill should be
objected to, as there was not a single law in existence in
this state, in direct contravention of the treaty of peace.
He urged the committee to consent to the passing of the
bill, from the consideration, that the state of New-York
was the only state to gain any thing by a strict adherence
to the treaty. There was no other state in the union that
had so much to expect from it. The restoration of the
western posts, was an object of more than £100,000 per
annum. Great Britain, he said, held those posts on the plea
that the United States have not fulfilled the treaty. And
which we have strong assurances, she will relinquish, on
the fulfillment of our engagements with her. But how far
Great Britain might be sincere in her declaration, was unknown.
Indeed, he doubted it himself. But while he [Volume 4, Page 592]
doubted the sincerity of Great Britain, he could not but be
of opinion that it was the duty of this state to enact a law
for the repeal of all laws which may be against the said
treaty, as by doing away all exceptions, she would be reduced
to a crisis. She would be obliged to shew to the
world, whether she was in earnest or not; and whether she
will sacrifice her honor and reputation to her interest.
With respect to the bill as it was drafted in conformity to
the recommendation of Congress; he viewed it as a wise,
and a salutary measure; one calculated to meet the approbation
of the different states, and most likely to answer the
end proposed. Were it possible to examine an intricate
maze of laws, and to determine which of them, or what
parts of laws were opposed to the treaty, it still might not
have the intended effect, as different parties would have
the judging of this matter. What one should say was a law
not inconsistent with the peace, another might say was so,
and there would be no end, no decision of the business.
Even some of the states might view laws in a different
manner. The only way to comply with the treaty, was to
make a general and unexceptionable repeal. Congress with
an eye to this, had proposed a general law, from which the
one before them was a copy. He thought it must be obvious
to every member of the committee, that as there was
no law in direct opposition to the treaty, no difficulty could
arise from passing the bill.

Some gentlemen, he observed, were apprehensive that
this bill would restore the confiscated estates, &c. This he
did not admit. However, if they were so disposed they
might add a proviso to prevent it. He had wrote one,
which any of the gentlemen might move for if they
thought it necessary; in his opinion it was not.

The treaty only provided that no future confiscations
should take place; and that Congress should earnestly recommend
a restoration of property. But there was nothing
obligatory in this.

If this state should not come into the measure, would it
not be a very good plea for the other states to favor their
own citizens, and say why should we do this, when New-York,
the most interested of any of the states, refuses to
adopt it; and shall we suffer this imputation when, in fact,
we have no laws in existence that militate against the
treaty. He stated the great disadvantages that our merchants
experienced from the western posts being in the
hands of the British, and asked if it was good policy to let
them remain so.

It had been said that the judges would have too much
power; this was misapprehended. He stated the powers of
the judges with great clearness and precision. He insisted
that their powers would be the same, whether this law was
passed or not. For, that as all treaties were known by the
constitution as the laws of the land, so must the judges act
on the same, any law to the contrary notwithstanding.

Cicero, the great Roman Orator and lawyer, lays it down
as a rule, that when two laws clash, that which relates to
the most important matters ought to be preferred. If this
rule prevails, who can doubt what would be the conduct
of the judges, should any laws exist inconsistent with the
treaty of peace: But it would be impolitic to leave them to
the dilemma, either of infringing the treaty to enforce the
particular laws of the state, or to explain away the laws of
the state to give effect to the treaty.

He declared that the full operation of the bill, would be
no more than merely to declare the treaty the law of the
land. And that the judges viewing it as such, shall do away
all laws that may appear in direct contravention of it.
Treaties were known constitutionally, to be the law of the
land, and why be afraid to leave the interpretation of those
laws, to the judges; the constitution knows them as the interpreters
of the law. He asked if there was any member
of the committee that would be willing to see the first
treaty of peace ever made by this country violated. This he
did not believe, he could not think that any member on
that floor harboured such sentiments.

He was in hopes the committee would agree with him in
sentiment, and give a proof of their attachment to our national
engagements by passing the bill, which would do
away every exception of the British Court.